Helen Polley (Tasmania, Australian Labor Party, Shadow Assistant Minister to the Leader (Tasmania)) Share this | Link to this | Hansard source

The majority of this bill makes a number of minor, technical and uncontroversial amendments to legislation relating to civil justice. The many amendments to existing legislation in this omnibus bill are intended to improve the operation and clarity of civil justice legislation, primarily by modelling, simplifying and clarifying existing provisions and by repealing redundant provisions. Some more-substantial changes to the existing legislation are also included in this bill, and I will briefly discuss those amendments shortly. This bill amends the following acts: Acts Interpretation Act 1901; Archives Act 1983; Bankruptcy Act 1996; Domicile Act 1982; Evidence Act 1995; Family Law Act 1975; International Arbitration Act 1974; Legislation Act 2003; Marriage Act 1961; and Sex Discrimination Act 1984.

The bill was carefully scrutinised by the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 10 May 2017. The committee received six submissions that commented on the proposed changes to five of these acts, and I will discuss these comments in more detail. The committee received no comments on the are remainder of the bill, which is not controversial. The committee made several substantial recommendations for improvement to the bill, subject to which the committee recommended that the bill be passed. Labor is pleased that the government is implementing those recommendations of the committee to make improvements to the bill and Labor is supporting the bill on that basis.

The first recommendation of the committee that the government will implement relates to the amendments to the Bankruptcy Act. Schedule 3 of the bill will make an amendment to the Bankruptcy Act that will clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a financial agreement set aside under the Family Law Act. Some submitters raised concerns about these amendments. The Law Council of Australia noted that the proposed amendments do not provide jurisdiction to the Family Court in bankruptcy in circumstances where a person has been discharged from bankruptcy, albeit that their estate remains vested in the trustee in bankruptcy. To remedy this, the Law Council recommended that the definition of 'bankrupt' and 'bankrupt party to a marriage' be clarified. The committee agreed with the Law Council and recommended that the bill be amended. Labor is pleased that the government has accepted the Law Council's advice and has acted on the recommendation of the committee by clarifying that a bankrupt includes a reference to a person who has been discharged from bankruptcy and whose property remains invested in the bankruptcy trustee under the Bankruptcy Act.

The second recommendation of the committee that the government has implemented relates to the amendments to the Family Law Act. The bill makes a significant change to Australia's response to international parental child abduction, clarifies the range of persons who may perform the powers of the registry manager in the Family Court or any other court and improves the consistency of financial and other provisions for de facto and married couples. The bill contains provisions that would create new offences regarding retaining a child outside Australia in the Family Law Act. The explanatory memorandum notes that these provisions would remedy a gap in the existing legislation. The Australian Human Rights Commission raised concerns that there are circumstances where it would be inappropriate to expose parents or others to criminal sanctions for taking, sending or retaining a child outside Australia—for instance, where there is evidence that children are taken or retained abroad by parents fleeing family violence.

An analysis of return and access applications under the Hague convention revealed that 70 per cent of child abductors were women and that the most common reason for the abduction was fleeing domestic violence. The committee formed the view that the bill should be amended to include a defence of fleeing family violence to ensure that the existing and proposed offences of unlawful transfer and retention of children abroad do not apply in the circumstances of family violence. Labor is pleased that the government has accepted this recommendation of the committee. Labor is firmly committed to responding to family violence and supports measures that reduce gender inequality. That is why we believe in supporting legislative reform to deal better with family violence, as well as measures to improve the capacity of the judicial system to deal with family violence. This amendment will ensure that victims of family violence who take their children overseas with them to flee their abuser will not be committing an offence.

There was considerable debate over some months between the government and the opposition about the most appropriate form of these new provisions. Most of that debate was quite technical in nature and I will not recite the many iterations of these provisions here, but I note that the final form of the amendments to several of the provisions of this bill dealing with children being taken overseas are acceptable to Labor.

The Family Law Act currently provides that a person who is authorised by the court to arrest another person has powers related to the use of reasonable force in making the arrest and the powers of entry and search for the purpose of arresting a person. In its submission, the Attorney-General's Department noted that the current arrest powers in the Family Law Act are subject to fewer limits than the arrest provisions available to other federal courts, that they are broader than the arrest powers available to police officers in the Crimes Act 1914 and that they lack limits and safeguards. The bill authorises additional persons to make arrests under the Family Law Act, including a marshal, a deputy marshal, a sheriff, a deputy sheriff, a police officer or the Australian Border Force Commissioner. The bill also provides that the power to arrest another person is conferred on an APS employee in the Department of Immigration and Border Protection.

The scrutiny committee considered this bill and asked whether the bill could be amended to require a certain level of relevant training to be undertaken by APS employees authorised to exercise these coercive powers. The Australian Human Rights Commission also shared the scrutiny committee's concern. On this basis, the committee urged the government to amend the bill to limit the delegation of arrest powers so that they only apply to employees of the Australian Border Force who have received appropriate training. Labor is pleased that the government has proposed amendments to the bill which limit the APS employees authorised to exercise these powers only to employees of the Australian Border Force in order to ensure that coercive powers are only being delegated to appropriate persons.

The bill also repeals section 43 of the Sex Discrimination Act, which exempts discrimination against women in connection with employment, engagement or appointment in Australian Defence Force positions involving combat duties. Labor fully supports this change, which removes gender restrictions from combat roles and is an important step towards equal opportunity for women. Labor is pleased to support the bill.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Civil Law and Justice Legislation Amendment Bill 2017. As Senator Polley has outlined, the Civil Law and Justice Legislation Amendment Bill is an omnibus bill which would amend the Acts Interpretation Act 1901, the Archives Act 1983, the Bankruptcy Act 1966, the Domicile Act 1982, the Evidence Act 1995, the Family Law Act 1975, the International Arbitration Act 1974, the Legislation Act 2003, the Marriage Act 1961 and, finally, the Sex Discrimination Act 1984. It makes minor and technical amendments to modernise, simplify and clarify these pieces of legislation and repeal redundant provisions. The combined effect of these amendments—the changes to this range of bills—is to improve the efficiency and operation of the civil justice system in Australia, which, of course, is an ideal that I'm sure all in this place would agree with.

The government aims to make all Commonwealth legislation coherent, readable and accessible to the widest possible audience. To this end, this bill would amend the Acts Interpretation Act and the Legislation Act to clarify the validity of ministerial acts and the management of compilations of legislation on the Federal Register of Legislation. The government also aims to make Australia's archival record accessible to the broadest range of applicants possible. To this end, amendments to the Archives Act would assist the National Archives of Australia to appropriately manage requests for records from high-volume applicants.

The bill makes other minor and technical amendments to the act. The proposed amendments in the bill simplify the interpretation of the Domicile Act by specifying within the act the territories to which the Domicile Act applies. This would replace an existing specification of territories in the regulations, allowing that regulation to be repealed. Again, this is about streamlining the legislative framework in this area and making it much more simple to understand.

The bill also amends the Evidence Act to align the time frame for the presumed receipt of postal articles with current Australia Post delivery times. Obviously, legislation needs to keep up with the times and be reflective of the realities of the modern world. The bill also reflects the government's commitment to maintain its place in the international legal environment by amending the International Arbitration Act to help ensure that Australian arbitration law and practice are on the global cutting edge so that Australia continues to gain ground as a competitive arbitration-friendly jurisdiction. Arbitration, whenever it is an option, is in the main much more cost-effective and has much better outcomes for all parties than having to go through lengthy and very costly legal proceedings.

The amendment to the Sex Discrimination Act would repeal obsolete provisions. The bill would repeal the combat duties exemption in section of 43 of the Sex Discrimination Act that allows discrimination against women in connection with employment, engagement or appointment in Australian Defence Force positions involving combat duties. The exemption is no longer necessary, as the Australian government's policy to remove all gender restrictions from the Australian Defence Force combat roles was fully implemented on 1 January 2016. Repealing this provision is consistent with Australia's intention to withdraw its related combat duties reservation to the Convention on the Elimination of All Forms of Discrimination against Women. This is something that's had a long genesis, and it's very good to see the final elements of the legislative framework in this area being delivered by this government.

We also see minor and technical amendments contained in the bill to improve the operation of the Family Law Act by clarifying existing laws, simplifying processes and eliminating some inconsistencies. This bill makes amendments to provide the same rights to de facto and married couples when instituting maintenance and property proceedings. The bill would also amend the Family Law Act to clarify the admissibility provisions in the Evidence Act relating to evidence obtained in an improper or illegal manner applying to evidence of disclosures of child abuse and communications between family consultants and family law litigants.

The bill would assist the operation of the Family Court of Australia in a number of ways. The bill would amend the Family Law Act procedure for appointing members to the Family Court of Australia Rules Advisory Committee to be consistent with the process for appointment of a similar committee advising the Chief Judge of the Federal Circuit Court of Australia. Other amendments to the Family Law Act would clarify the range of persons who may perform the powers of the registry managers in the Family Court of Australia and any other court. The Bankruptcy Act would also be amended to clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a binding financial agreement set aside under the Family Law Act.

This bill we are debating today also makes minor amendments to the Marriage Act. Many of these amendments are aimed at improving the operation of the Marriage Celebrants Program. These measures would enhance administrative efficiency by making improvements to the annual celebrant registration charge process. The bill also formalises an existing expectation that celebrants comply with any disciplinary measures that may be imposed by the registrar, and clarifies that the Registrar of Marriage Celebrants is a publicly available list published on the internet—again, keeping our legislative framework in line with the modern world.

The bill would provide that where state or territory employees are appointed according to their position title to perform functions under the Marriage Act, they may be referred to on the register by their position title rather than their name. Some definitions and terminologies will be updated to ensure consistency with other legislation. The bill also clarifies that certain instruments made under the act are not legislative instruments and it remedies a defect in the legislation to remake provisions in relation to the Registrar of Overseas Marriages that were repealed in 2002.

In conclusion, the intention of the bill is to make a number of minor and technical amendments to a number of acts to increase access to justice for all Australians by improving the operation and clarity of civil justice legislation. The amendments contained in the bill would improve the civil justice system by making it easier for individuals to understand and comply with the law. Thank you.

Bridget McKenzie (Victoria, National Party, Minister for Regional Services) Share this | Link to this | Hansard source

The purpose of the Civil Law and Justice Legislation Amendment Bill 2017 is to make minor, technical and uncontroversial amendments to civil justice legislation in order to improve its operation and clarity. I would like to thank the following senators for their contribution to the debate of the bill: Senator Polley and Senator Brockman.

The bill compiles minor amendments to civil law and justice legislation. Amendments to the Acts Interpretation Act 1901 and the Legislation Act 2003 would clarify the validity of ministerial actions and the operation of provisions about the management of compilations prepared for the Federal Register of Legislation.

Amendments to the Archives Act 1983 would provide the National Archives of Australia with an enhanced ability to appropriately manage high-volume applications requesting access to records and to make other minor technical amendments, including repealing outdated provisions that do not reflect the archive's current services or technological advances.

Amendments to the Bankruptcy Act 1966 would clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a financial agreement set aside under the Family Law Act.

An amendment to the Domicile Act 1982 would amend the act so that it applies to territories currently specified in the Domicile Regulations 1982.

An amendment to the Evidence Act 1995 would update the presumption about when postal articles sent by prepaid post are received to accord with changes to Australia Post delivery times.

Amendments to the Family Law Act 1975 would strengthen Australia's response to international parental child abduction, clarify the range of persons who may discharge the powers of registry managers in the Family Court of Australia and improve the consistency in the application of provisions for de facto and married couples. The bill also includes amendments to update the arrest, entry and search powers under the Family Law Act and adds additional safeguards for the exercise of those powers. The amended arrest provisions are better tailored for the needs of— (Time expired)

Debate interrupted.

The Senate transcript was published up to 12:45. The remainder of the transcript will be published progressively as it is completed.